Key point 4-02. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are "published" (that is, communicated to other persons); and (4) that injure the other person's reputation.
A New Jersey court ruled that a religious organization's leaders who allegedly were defamed by anonymous posts on a website could compel the poster's internet service provider (ISP) to disclose his identity so that he could be sued. Four leaders of a religious organization (the "plaintiffs") filed a lawsuit that claimed they were being defamed by an anonymous person (the "defendant") who made frequent and malicious postings about them and their organization on social media. The plaintiffs alleged that the defendant had defamed them, cast them in a false light, and intentionally and negligently caused them emotional distress through postings that appeared on a website. The lawsuit cited postings claiming that two of the plaintiffs were engaged in an extramarital affair. The lawsuit named the ISP as an additional defendant. The plaintiffs asked the court to compel the disclosure of the defendant's identity so that the lawsuit against him could proceed. The defendant responded by asking the court for a protective order barring the disclosure of his identity. The court refused to issue a protective order, and the defendant appealed.
A state appeals court applied a four-part test that is applicable whenever "trial courts are faced with an application by a plaintiff for an order compelling an Internet Service Provider (ISP) to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations or businesses." Under this test, a trial court must "first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure." Thereafter, a plaintiff must: